en iso 14971 2012
DESCRIPTION
This document provides a challenge to the legality of the Content Deviation # 3 introduced in the EN ISO 14971:2012.TRANSCRIPT
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Kanwal Jit Singh
C 603 Mithras Park, Rahatani Road, Pimpale Saudagar, Pune, 411027, INDIA Phone: +91 20 4674 3310 / +91 98204 44331 Email: [email protected]
Bringing fresh insights to add economic value by asking the right questions
EN ISO 14971:2012 Content Deviation # 3 IS IT IN TUNE WITH EU
REGULATORY FRAMEWORK
Content Deviation # 3 reads as follows
Risk reduction "as far as possible" versus "as low as reasonably practicable":
a) Annex D.8 to ISO 14971, referred to in 3.4, contains the concept of reducing risks "as low as reasonably practicable" (ALARP concept). The ALARP concept contains an element of economic consideration.
b) However, the first indent of Section 2 of Annex I to Directive 93/42/EEC and various particular. Essential Requirements require
risks to be reduced "as far as possible" without there being room for economic considerations.
c) Accordingly, manufacturers and Notified Bodies may not apply the ALARP concept with regard to economic considerations
Section 2 of Annex 1 to MDD read as follows
2. The solutions adopted by the manufacturer for the design and construction of the devices must conform to safety principles, taking
account of the generally acknowledged state of the art.
In selecting the most appropriate solutions, the manufacturer must
apply the following principles in the following order:
eliminate or reduce risks as far as possible (inherently safe design and construction),
where appropriate take adequate protection measures including alarms if necessary, in relation to risks that cannot be eliminated,
inform users of the residual risks due to any shortcomings of the protection measures adopted.
ASPECT 1: CD$# 3 not in tune with the EU Legislative Requirements.
The content deviation has interpreted that the as far as possible in the first
indent of Section 2 of Annex 1 implies the absence of economic
considerations.
This blog examines this premise with reference to the legal interpretations
available today of the EU Regulatory Framework. The version of the directive
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Kanwal Jit Singh
C 603 Mithras Park, Rahatani Road, Pimpale Saudagar, Pune, 411027, INDIA Phone: +91 20 4674 3310 / +91 98204 44331 Email: [email protected]
Bringing fresh insights to add economic value by asking the right questions
that is being referred to in this blog is 1993L0042 EN 11.10.2007
005.001
1. On Page 3 of the directive the first recital originating on the page reads
as
Whereas the essential requirements and other requirements set out in the Annexes to this Directive, including any reference to
minimizing or reducing risk must be interpreted and applied in such a way as to take account of technology and practice
existing at the time of design and of technical and economical considerations compatible with a high level of protection of
health and safety;
2. This recital clearly states that the reduction in the risks must be
interpreted and applied in such a way to
a. Take into account Technology and practices existing at the time
of design of the device
b. Take into account Technical and Economical Considerations
compatible with a high level of protection and safety
3. Therefore there is a clear conflict between the text of the CD# 3 and
the text in the recital.
4. The legislative value of a recital has been defined by the Joint Practice
Guide: Guide of the European Parliament, the Council and the
Commission for persons involved in the drafting of legislation within
the Community Institutions.
a. In terms of Part 10 of the Guide
i. The purpose of the recitals is to set out concise reasons for
the chief provisions of the enacting terms, without
reproducing or paraphrasing them. They shall not contain
normative provisions or political exhortations.
ii. The recitals are the part of the act which contains the
statement of reasons for the act;
iii. They are placed between the citations and the enacting
terms.
iv. Regulations, directives and decisions must state the
reasons on which they are based.
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Kanwal Jit Singh
C 603 Mithras Park, Rahatani Road, Pimpale Saudagar, Pune, 411027, INDIA Phone: +91 20 4674 3310 / +91 98204 44331 Email: [email protected]
Bringing fresh insights to add economic value by asking the right questions
v. The purpose is to enable any person concerned to ascertain
the circumstances in which the enacting institution
exercised its powers as regards the act in question.
vi. This would provide the parties to the dispute the
opportunity to defend their interests and to enable the
Community judicature to exercise its power of review.
vii. The text of the relevant part of the Guide is available at
http://goo.gl/iUZ5qV
5. Thus the removal of economic considerations from the risk
management process is not in tune with the legislative intent of the
directive.
ASPECT 2: JUDICIAL DECISION ON ALARP
Item 3 of CD# 3 prohibits the use of ALARP by NBs in the assessment of the
Risk Management undertaken by manufacturers.
In this context, attention of the standard formulators is drawn to the
decision of European Court of Justice in case no. C 127/05 [Commission vs.
UK] decided on June 14, 2007.
The matter under consideration before the court was
Commission of the European Communities seeks a declaration from the
Court that, by restricting the duty upon employers to ensure the safety and
health of workers in all aspects related to work to a duty to do this only so
far as is reasonably practicable', the United Kingdom of Great Britain and
Northern Ireland has failed to fulfil its obligations under Article 5(1) and (4)
of Council Directive 89/391/EEC of 12 June 1989 on the introduction of
measures to encourage improvements in the safety and health of workers
at work
The Commission pleaded that
'... the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations
The plea of the Commission was the same as that stated in the justification
for the removal of ALARP and economic considerations from the Risk
Management Process by the manufacturers and Notified Bodies.
-
Kanwal Jit Singh
C 603 Mithras Park, Rahatani Road, Pimpale Saudagar, Pune, 411027, INDIA Phone: +91 20 4674 3310 / +91 98204 44331 Email: [email protected]
Bringing fresh insights to add economic value by asking the right questions
The Court decided in declaring that the term SAFAIRP (so far as is
reasonably practicable) is in tune with the requirements of the Directive
89/331/EEC and dismissed the action desired by the Commission.
IN this context, it is pertinent to invite attention to Paragraphs 34 and 35 of
the Opinion given by the Advocate General Mengozzi delivered on January
18, 2007.
The Judgment and Opinion can be accessed at http://goo.gl/OiTk0w and
http://goo.gl/4nqzdb respectively.
CONCLUSION
I therefore urge the powers that be within the EU to recognize the issues in
the standard and take appropriate action to remove this from the Annexes
in the standard.